' MUHAMMAD RAZA KHAN (MENBER).---While serving the Railway Police for considerable long period the appellant was promoted as S.P. In 1982. On the basis of seniority and service he considers himself to be eligible for consideration to the post of D.I.-G. In Railway Police with effect from 1987.
Instead of his promotion, the Officers from the Police Service of Pakistan (hereinafter called the P.S.P.) were appointed against the said post and on 7-2-1994 the respondent No, 5 was appointed as D.I.-G. In the Railway Police who belonged to the P.S.P. Cadre. Lateron an Officer from Army, the respondent No, 6, was also inducted as D.I.-G., Special Branch in the Pakistan Railway Police (hereinafter called the P.R.P.) The appellant feeling aggrieved by the said appointments of respondents Nos. 5 and 6 filed a representation which was rejected by the respondent No, 1 on 2-4- 1994 in these words: "SUB: REPRESENTATION AGAINST THE POSTING OF A P.S.P. OFFICER AS D.I.-G. (SPECIAL BRANCH) AND DEPRIVING THE REPRESENTATIONIST OF. THE WELL-DESERVED PROMOTION.
' Ref: Your Letter No, A-15/60-PRF, dated 23-2-1994.
' In the subject-matter representation dated Nil by Aurangzeb Khan, Superintendent, Railway Police, Rawalpindi, received with your letter under reference has been considered and found not in order under the Rules. He may please be informed accordingly indicating that he should not represent for uncalled ground etc."
2. The appellant challenged the said orders of appointment of respondents Nos. 5 and 6 and the rejection of his petition through Appeal No,183(R)/94. This appeal was heard on 3-8-1994 and vide the final verdict of this Tribunal dated 27-2-1995 the case was remanded to the Secretary, Establishment Division for passing appropriate orders on the representation of the appellant which was summarily dismissed by the Secretary Railways on 2-4-1994 (as per above-quoted decision).
Consequently the ball was rolled to the Court of. Respondent No, 2 and he on 9-8-1995 rejected departmental representation in these words: "Subject: DISPOSAL OF DEPARTMENTAL APPEAL IN IMPLEMENTATION OF THE ORDERS, DATED 27-2-1995 PASSED BY THE FEDERAL SERVICE TRIBUNAL.
' With reference to his application, dated Nil and the Federal Service Tribunal's order, dated the 27th February, 1995, Mr. Aurang Zeb Khan, a BS-19 Officer of the Police Service of Pakistan is hereby informed that his request for consideration for promotion to the post of Deputy Inspector-General of Railway Police under the Pakistan Railway Police Act, 1977, has been examined and it is regretted that his request cannot be acceded to as, after his encadrement in the Police Service of Pakistan, he is governed by the Civil Servants Act, 1973 and the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 and that he will be considered for promotion as Deputy Inspector- General of Police (BS-20) on his turn on the basis of seniority in the Police Service of Pakistan and subject to fulfilment of all other conditions prescribed for promotion to that post.
2. Mr. Aurangzeb Khan is further informed that his request for antedation of his encadrement in the Police Service of Pakistan with effect from 3-4-1982 has been considered but it has not been found possible to accede to it."
3. 'It is this order which has been challenged in the present appeal, alongwith the appointment of respondents Nos 5 and 6 as D.I.-G. In the P.R.P. The impugned order dated 9-8-1995 was challenged on the grounds inter alia, that firstly the question of encadrement of the appellant in the P.S.P. Was already discussed in detail in the judgment of this Tribunal in the earlier appeal and hence the appeal of the appellant should have not been rejected simply on the unilateral encadrement of the appellant in P.S.P. Secondly, that the Authority on behalf of the President with regard to the Officers of the P.R.P. Under the Pakistan Railway Police Act vested in the Railways Division and not the Establishment Division. Thirdly, that the appellant's encadrement in the P.S.P.
Cadre was not based on the request of the appellant and, therefore, he was to be released from the P.S.P. Cadre and allowed to retain his position in the P.R.P. Fourthly, that the retrospective encadrement of the appellant with effect from 3-4-1982, the date he was promoted as S.P. In the P.R.P., was illegally refused by the impugned order and if he is to continue in the P.S.P., he may be given seniority with retrospective effect. Lastly that the post of D.I.-G., Special Branch in the P.R.P.
Was not even indicated in the P.S.P. Cadre and there was no reason why the appellant may not be considered for promotion to that post. Thus the appellant prayed for his promotion as D.I.-G. In the P.R.P. With effect from 1987 and for this purpose he was to be released from the P.S.P. Cadre to get his promotion in accordance with the provisions of status and, in the alternative, if the induction of the appellant in the P.S.P. Was considered to be regular then he may be given seniority with effect from 3-4-1982 to protect his right of promotion prior to the promotion of the Officers in the P.S.P.
Who are appointed or promoted as S.P. After 3-4-1982.
4. The respondents Nos. 2 and 4 contested the case whereas the remaining four respondents did not care to attend final hearing of the case and, therefore, they were proceeded against ex parte.
They had, however, prepared their written objections somewhere around 11-12-1985, a photocopy whereof is placed on the file. The contesting respondents 2 and 4 (hereinafter called the respondents) basically relied on the sole ground that since the appellant has been inducted in the P.S.P., therefore, he cannot claim promotion against the post in P.R.P. And he being a civil servant fell squarely within the domain of the Establishment Division under Civil Servants Act, 1973. It is further contended that the observation of a Member of the Tribunal should not have been relied upon by the appellant because it was the opinion of minority only. Moreover, the retrospective seniority after encadrement in P.S.P. Was not possible because of the amendment of P.S.P. Rules, 1985 in the year 1992. The respondents categorically denied the contention that antedation of his encadrement was agreed subject to withdrawal of appeal before the Tribunal. Hence it was finally concluded that the appellant being an Officer of P.S.P. Cadre will be considered for promotion in his turn and he could not be considered for promotion against any other post including the post of D.I.-G. In Special Branch. We have listened to the arguments on behalf of the parties and perused the record.
5. Before embarking upon discussion on various points raised in the present appeal it will be necessary to determine the effect of judgment of his Tribunal in the previous appeal. In earlier appeal one Member of his Tribunal gave a detailed judgment on 27-11-1994 whereas the other Member differed on one point vide his judgment dated 15-2-1995 and verdict of the Tribunal under proviso (b) to subsection (2) of section 3-A of the Service Tribunals Act, 1973 was that the case be remanded to the Secretary, Establishment Division for passing appropriate orders on the departmental representation. Thus, only the final mode of disposal o: appeal was altered. There is concurrence of the Tribunal on all, but one, points. The points on which there was concurrence of opinion in the Tribunal can be summarised as follows:
(a) That the authority to determine the terms and conditions and other matters relating to the Railway Police vested in the Federal Government and exercised by the "Chief Executive" of Pakistan Railways and the Ministry of Railways.
(b) That the posts of I.-G. And D.I.-G. In the P.R.P. Are placed in the promotion quota as indicated under Rule 15-A of Appendix V.
(c) That the Civil Servants Act, 1973 being the general law governs all the civil servants but the Pakistan Railway Act, 1977 being a special law shall prevail in its application to the Officers of Railway Police being a disciplined force for which particular Act and the Rules were enforced.
(d) That the Railway Police Act, 1977 was a statute and the P.S.P. Rules of 1985 being subordinate legislation, cannot override specific provisions of Railway Police Act.
(e) The Pakistan Railway Act, 1977 will govern the criteria for determining the fitness/promotion of the appellant from the date of his eligibility.
(0 That under the statute the appointment against promotion posts can also be made by transfer or direct recruitment such appointments shall be subject to the conditions that the eligible departmental officers may be considered first and if they were not found fit, the post can be filled by transfer or new appointment. The appellant being senior most officer was deprived of his right of consideration.
(g) That instead of appointment of certain officers by transfer to the P.R.P., a unique method was adopted that the posts of P.R.P. Were transferred to the. P.S.P. Cadre which was violative of the P.R.P.
Act, and therefore, illegal.
(h) That keeping in view the statement of the Establishment Division before the Lahore High Court in a writ petition the posts of I.-G. And D.I.-G. In the Railway Police fell in the promotional quota and, therefore, the appointment of Police Officers from outside the Railway Police in the P.R.P. Was a clear violation of the Pakistan Railway Act, 1977 and the said commitment before the Court.
(i) That in judgment of this Tribunal in Appeal No, 403(R) of 1993 upheld by the Honourable Supreme Court, and another judgment of this Tribunal in Appeal No, 314(R) of 1992, it was held that in the first instance the departmental officers may be considered for promotion after observing due process and in case of their ineligibility and unsuitability, the posts can be filled by transfer; and
(j) That a post of Extra D.I.-G. Special Branch was in any way a non-cadre post.
6. On the force of the above findings one Member of this Tribunal held that the appellant was eligible for promotion and the respondents should forward his case to the appropriate authority for considering him for promotion to the post of D.I.-G. In Pakistan Railway Police. However, the other learned Member was of the opinion that since the appellant had challenged the notification dated 25-1-1994 by way of a departmental representation addressed to the Secretary, Establishment Division, Islamabad but instead of forwarding the same to the proper quarters, the Secretary Railway had himself decided the representation. Hence he was of the view that since the departmental appeal of the appellant was not decided by a competent authority, therefore, it will be just and proper if the case is remanded to the Secretary, Establishment Division for "an appropriate and well-reasoned order in accordance with law". The verdict of the Tribunal finally culminated in the Order of remand.
7. This shows that the Tribunal has agreed with the rest of the findings however, there was difference with regard to the final disposal of appeal and it was finally remanded to the Establishment Secretary for a well-reasoned order on a representation which has been addressed to him. Thus, we are left only to consider whether the order of the Secretary, Establishment Division, on the said representation was just, legal and based on the merits of this case.
8. In the impugned order the Secretary, Establishment Division i,e, respondent No, 2, does not touch the above points in consensus relating to the legality of encadrement of the posts under the P.R.P.
Into the P.S.P. Cadre and about the legality of the appointment of respondents Nos. 5 and 6 against the posts in P.R.P. The respondent No, 2 has simply rejected the representation on two counts:
(i) Firstly, that since the appellant was inducted into P.S.P., therefore, he was a civil servant under the Civil Servants Act and he will be considered for promotion as D.I.-G. On his turn on the basis of seniority in P.S.P. And subject to other conditions prescribed for promotion to that post; and
(ii) Secondly, the request of the appellant for antedation of his promotion with effect from 1982 was also rejected on the simple ground that it has not been found possible to accede to it. This is the way how the case of the appellant was disposed of by "appropriate and well-reasoned order in accordance with law", as desired by this Tribunal earlier.
9. The analysis of the impugned order will show:
(a) That the respondent No, 2 believes that on the encadrement of the appellant in the P.S.P. Cadre he has lost his right to be considered for a post in the P.R.P. This presupposes that P.R.P. And P.S.P.
Are two different cadres and the person on the P.S:P. Cadre cannot be considered for the post in the P.R.P. Cadre. In this may be the situation, the appointment of the respondent No, 5 is indirectly admitted by the respondent No, 2 to be illegal. Moreover, the appointment of the respondent No, 6 has not been answered by the said reply to the representation of the appellant.
(b) That the respondent No, 2 is also sure in his mind that had the appellant been in the P.R.P.
Cadre he would have been entitled to be considered for promotion as D.I.-G. But simply because of his encadrement in the P.S.P. His terms and conditions are to be governed by the Civil Servants Act and not by the Railway Act and, therefore, he was not entitled to promotion. If the main basis of his encadrement in the P.S.P., being without his option or undertaking of loss of seniority, is held to be ineffective on his rights, the appellant will be well within his rights to demand promotion as D.I.-G. In the Railway Police.
(c) With regard to antedation of his seniority with effect from 1982 no reasons have been given in the impugned order although the order was supposed to be well-reasoned and speaking one. In such a situation reference may be made to the ESTACODE which provides that on the transfer of a civil servant, in public interest, to another department without his express desire, the civil servant will retain his seniority as in the parent department. The appellant is inducted in 1992 in the P.S.P. To comply with the quota prescribed for the encadrement of P.R.P. Officers in P.S.P. Cadre, the encadrement being without his application, opinion or undertaking, cannot disturb his seniority as in the original cadre. Even if he is to be retained in the P.S.P., he has a right to retain his seniority with effect from 1982 when he was regularly promoted as S.P. He cannot be placed junior to those who were appointed or promoted as S.P. In P.S.P. Later than 1982, because the appellant cannot be penalised for no fault on his part. Thus the impugned order is not only violative of the clear provisions of law and the principles of fair and equitable norms of civil service but is also violative of the standing instructions contained in the ESTACODE maintained by the Establishment Division itself.
(d) Although the contesting respondents denied the willingness of the respondent No, 2 to antedate the seniority of the appellant w,e,f, 1982 subject to his withdrawal of the service appeal but the appellant has annexed the copy of letter of the Establishment Division dated 4-10-1994 saying that "the Officer may be asked to give a specific option whether he desires antedation of encadrement in the P.S.P. Or his promotion in Railway Police. In case he opts for the first he will have to withdraw his case of promotion from the Court". This shows that on 4th of October, 1994 the option or undertaking from the appellant was not available with the Establishment Division. We are told that in response to the above letter the appellant forwarded a detailed reply on 27-10-1994 expressing his undertaking to withdraw the appeal on certain conditions regarding protection of his career prospects.
' Thus the appellant was encadered without his request or even an unconditional option and, therefore, he could not be divested of his rights in the P.R.P.
10. To re-capitulate the points already discussed earlier as well as hereinabove, it can be said that the respondent Department has:
(i) Firstly subjugated the statutory provisions of Railway Police Act, 1977 by subordinate legislation of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985 which is not only an illegality but is a violation of the concept of supremacy of Parliament. This can be termed as a unique example of misuse of the executive authority.
(ii) Secondly, the Civil Servants Act, 1973 being a general law and earlier in time is erroneously supposed to have an overriding effect on the Pakistan Railway Act, 1977, a special statute and later in time. It is an established principle that in case of conflict of laws the special law will have overriding effect over the general law and that the later law will prevail over the one promulgated earlier.
(iii) Thirdly, the Authority vested in Ministry of Railway by virtue of the Railway Act, 1977 (which was heretofore exercised in so many cases by the Railways Division as per extract of various notifications placed on file), has been allowed to gradually fade away on the force of certain powers vested in the Establishment Division by virtue of the Rules of Business, 1973. Thus, another successful attempt has been made to subjugate the statute by the rules. The Rules of Business, 1973 are also prior in time and its conflicting provision can be presumed to have been expressly modified by the clear provisions of statute of 1977. Thus, the authority to regulate the Terms and Conditions of service of Civil Servants falling within the ambit of Railway Act, 1977, is to be exercised by the Railway Division on behalf of the Federal Government and not by the Establishment Division.
It appears from the record that the Railway Division had, on several occasions earlier tried to resist the orders of the Establishment Division whereby officers were imposed which were not accepted by the former Division. However, all such efforts, based on the express provisions of law, failed to have any positive result simply on the force of the so-called overriding effect of the Rules of Business, 1973.
(iv) In this particular case the law had given relaxation to transfer of service of officers from other cadres into the Pakistan Railways Police subject to condition of non-availability of any suitable candidate in the cadre itself. It is universally understood that in case of transfer from other cadre, the person who is so transferred has to join the new cadre. Thus, if there was no competent or suitable person in the P.R.P., the officers from other cadres or groups could have been appointed "on transfer", to the P.R.P. And thereafter such officers would have become part and parcel of the P.R.P. But in the instant case, instead of complying with the express provisions of law for appointment of Officers of other cadres "on transfer" to the PRP, the posts have been transferred to a cadre totally alien to the system of the P.R.P. Hence the law is not only violated and negated but the resourceful group has made mockery of it by misinterpreting it in a way which best suits their interests in career.
(v) Lastly, in the sequence of aforementioned series of illegalities, one has been done to the appellant himself. He has been asking for a couple of years, that the posts in the P.R.P. Cadre are reserved to be manned by the P.R.P. Officers only and their abduction to the cadre of P.S.P. Was illegal and, therefore, he demanded to be promoted to the next higher scale. Instead of listening to his clamours for granting him the due legal right, he was arbitrarily shifted to another cadre so that he may be doomed for ever. His vested right of seniority was also not granted and thus an effort was made to shut his mouth by an order that was neither demanded nor required.
11. In consequence of the above discussion it can be safely held that the encadrement of the appellant in the P.S.P. Cadre was violative of his rights under Railway Act and he is entitled to be released from the P.S.P. To join his position in P.R.P.. On his rejoining the P.R.P., he may be considered for promotion to the next higher scale by the appropriate Committee within the Railways Division in accordance with the spirit of Pakistan Railway Act for promotion to the next higher scale from the date he was due for it. If his release or rejoining is not possible; for any reason whatsoever, he should be given his right of seniority with effect from 3-4-1982. We, therefore, accept this appeal in terms stated above with costs.
12. Parties be informed.